Tuesday, May 26, 2009

HELD: 1.1. The object of the maintenance proceedings is not to punish a personfor his past neglect, but to prevent vagrancy by compelling those who canprovide support to those who are unable to support themselves and who have amoral claim to support. The phrase "unable to maintain herself" would mean thatmeans available to the deserted wife while she was living with her husband andwould not take within itself the efforts made by the wife after desertion tosurvive somehow. S.125 Cr.P.C. is a measure of social justice and is speciallyenacted to protect women and children and falls within constitutional sweep ofArticle 15(3) reinforced by Article 39 of the Constitution of India, 1950. Itprovides a speedy remedy for the supply of food, clothing and shelter to thedeserted wife. It gives effect to fundamental rights and natural duties of a manto maintain his wife, children and parents when they are unable to maintainthemselves. [Para 5] [586-B, C,D, E]

1.2. Under the law, the burden is placed in the first place upon the wife toshow that the means of her husband are sufficient. In the instant case, there isno dispute that the appellant has the requisite means. But there is aninseparable condition which has also to be satisfied that the wife was unable tomaintain herself. These two conditions are in addition to the requirement thatthe husband must have neglected or refused to maintain his wife. The appellanthas placed material to show that the respondent-wife was earning some income.That is not sufficient to rule out application of s.125 Cr.P.C. It has to beestablished that with the amount she earned the respondent-wife was able tomaintain herself. Whether the deserted wife was unable to maintain herself, hasto be decided on the basis of the material placed on record. Where the personalincome of the wife is insufficient she can claim maintenance under s.125 Cr.P.C.The test is whether the wifeis in a position to maintain herself in the way she was used to at the place ofher husband.[Paras 6, 7 and 8] [583-F, G; 584-A, B, C]

Bhagwan v. Kamla Devi, AIR (1975) SC 83, relied on and re-iterated.

2. The trial Court, the Revisional Court and the High Court analysed theevidence and held that the respondent wife was unable to maintain herself. Theconclusions are essentially factual and they are not perverse. That being sothere is no scope for interference in this appeal. [Para 9] [584-D, E]

Shashindra Tirpathi, Sharad Tripathi and Debasis Misra for the Appellant.

Shashi Bhushan Kumar for the Respondent.

Code of Criminal Procedure, 1973:

s.125-Claim for maintenance by wife-Wife not having sufficient means to maintainherself and husband having sufficient means-Order of maintenance by Courts belowafter analyzing evidence-Interference with-Held: Conclusion of courts below thatwife was unable to maintain herself was essentially factual and notperverse-Thus, interference not called for-Constitution of India-Article 136.

s.125-Maintenance proceedings-Object of-Held: s.125 is a measure of socialjustice, especially enacted to protect women, children and parents when they areunable to maintain themselves, and falls within constitutional sweep of Article12(3) reinforced by Article 39 of the Constitution-Constitution of India,1950-Articles 15(3) and 39-Social justice.

The respondent-wife filed an application under s.125 Cr.P.C. claimingRs.10,000/- as maintenance from the appellant-husband. In the application, itwas claimed that she was unemployed and unable to maintain herself.

The stand of the appellant was that the wife was living in the house constructedby him; that she had let out the house on rent and since 1979 was residing withone of their sons; that the wife had sold the agricultural land and saleproceeds were still with her; and that she could maintain herself from the moneyreceived from the sale of agricultural land and rent.

Considering the evidence on record, the trial Court directed husband to payRs.1500 per month opining that the wife did not have sufficient means tomaintain herself. The revisional Court analysed the evidence and dismissed therevision petition holding that the appellant's monthly income was more thanRs.10,000/- and the amount received as rent by the respondent-wife was notsufficient to maintain herself.

Appellant filed an application under s.482 Cr.P.C. before the High Court. TheHigh Court dismissed the application holding that the conclusions by the trialCourt and the Revisional Court were arrived at on appreciation of evidence andtherefore there was no scope for any interference. Hence the present appeal.

CRIMINAL APPEAL NO. 1627 OF 2007(Arising out of SLP (Crl.) No.4379 of 2006)

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by alearned Single Judge of the Madhya Pradesh High Court,Indore Bench, dismissing the revision petition filed by theappellant in terms of Section 482 of the Code of CriminalProcedure, 1973 (in short 'Cr.P.C.'). The challenge before theHigh Court was to the order passed by learned JudicialMagistrate, First Class, Neemuch, M.P. as affirmed by thelearned Additional Sessions Judge, Neemuch, M.P. Therespondent had filed an application under Section 125 ofCr.P.C. claiming maintenance from the appellant.Undisputedly, the appellant and the respondent had enteredinto marital knot about four decades back and for more thantwo decades they were living separately. In the application itwas claimed that she was unemployed and unable to maintainherself. Appellant had retired from the post of AssistantDirector of Agriculture and was getting about Rs.8,000/- aspension and a similar amount as house rent. Besides this, hewas lending money to people on interest. The appellantclaimed Rs.10,000/- as maintenance. The stand of theappellant was that the applicant was living in the houseconstructed by the present appellant who had purchased 7bighas of land in Ratlam in the name of the applicant. She letout the house on rent and since 1979 was residing with one oftheir sons. The applicant sold the agricultural land on13.3.2003. The sale proceeds were still with the applicant.The appellant was getting pension of about Rs.5,700/- p.m.and was not getting any house rent regularly. He was getting2-3 thousand rupees per month. The plea that the appellanthad married another lady was denied. It was furthersubmitted that the applicant at the relevant point of time wasstaying in the house of the appellant and electricity and waterdues were being paid by him. The applicant can maintainherself from the money received from the sale of agriculturalland and rent. Considering the evidence on record, the trialCourt found that the applicant-respondent did not havesufficient means to maintain herself.

3. Revision petition was filed by the present appellant.Challenge was to the direction to pay Rs.1500/- p.m. by thetrial Court. The stand was that the applicant was able tomaintain herself from her income was reiterated. Therevisional court analysed the evidence and held that theappellant's monthly income was more than Rs.10,000/- andthe amount received as rent by the respondent-claimant wasnot sufficient to maintain herself. The revision wasaccordingly dismissed. The matter was further carried beforethe High Court by filing an application in terms of Section 482Cr.P.C. The High Court noticed that the conclusions havebeen arrived at on appreciation of evidence and, therefore,there is no scope for any interference.

4. Section 125 Cr.P.C. reads as follows:

"125. (1) If any person having sufficient meansneglects or refuses to maintain(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child,whether married or not, unable to maintainitself, or

(c) his legitimate or illegitimate child (not beinga married daughter) who has attainedmajority, where such child is, by reason of anyphysical or mental abnormality or injuryunable to maintain itself, or

(d) his father or mother, unable to maintainhimself or herself,a Magistrate of the First Class may, upon proof ofsuch neglect or refusal, order such person to makea monthly allowance for the maintenance of his wifeor such child, father or mother, at such monthlyrate not exceeding five hundred rupees in the whole,as such Magistrate thinks fit, and to pay the sameto such person as the Magistrate may from time totime direct:Provided that the Magistrate may order thefather of a minor female child referred to in clause(b) to make such allowance, until she attains hermajority, if the Magistrate is satisfied that thehusband of such minor female child, if married, isnot possessed of sufficient means.Explanation .For the purposes of this Chapter,(a) 'minor' means a person who, under theprovisions of the Indian Majority Act, 1875 (9of 1875), is deemed not to have attained hismajority;(b) 'wife' includes a woman who has beendivorced by, or has obtained a divorce from,her husband and has not remarried."["(2) Any such allowance for the maintenance orinterim maintenance and expenses of proceedingshall be payable from the date of the order, or, if soordered, from the date of the application formaintenance or interim maintenance and expensesof proceeding, as the case may be.";](3) If any person so ordered fails without sufficientcause to comply with the order, any such Magistratemay, for every breach of the order, issue a warrantfor levying the amount due in the manner providedfor levying fines, and may sentence such person, forthe whole, or any port of each month's allowance 4[allowance for the maintenance or the interimmaintenance and expenses of proceeding , as the casemay be] remaining unpaid after the execution of thewarrant, to imprisonment for a term which mayextend to one month or until payment if sooner made:Provided that no warrant shall be issued for therecovery of any amount due under this sectionunless application be made to the Court to levysuch amount within a period of one year from thedate on which it became due:Provided further that if such person offers tomaintain his wife on condition of her living withhim, and she refuses to live with him, suchMagistrate may consider any grounds of refusalstated by her, and may make an order under thissection notwithstanding such offer, if he is satisfiedthat there is just ground for so doing.Explanation.-If a husband has contracted marriagewith another woman or keeps a mistress, it shallbe considered to be just ground for his wife'srefusal to live with him.(4) No wife shall be entitled to receive an 4 [allowancefor the maintenance or the interim maintenance andexpenses of proceeding , as the case may be] from herhusband under this section if she is living inadultery, or if, without any sufficient reason, sherefuses to live with her, husband, or if they are livingseparately by mutual consent.(5) On proof that any wife in whose favour an orderhas been made under this section is living inadultery, or that without sufficient reason sherefuses to live with her husband, or that they areliving separately by mutual consent, the Magistrateshall cancel the order."

5. The object of the maintenance proceedings is not topunish a person for his past neglect, but to prevent vagrancyby compelling those who can provide support to those whoare unable to support themselves and who have a moral claimto support. The phrase "unable to maintain herself" in theinstant case would mean that means available to the desertedwife while she was living with her husband and would not takewithin itself the efforts made by the wife after desertion tosurvive somehow. Section 125 Cr.P.C. is a measure of socialjustice and is specially enacted to protect women and childrenand as noted by this Court in Captain Ramesh ChanderKaushal v. Mrs. Veena Kaushal and Ors. (AIR 1978 SC 1807)falls within constitutional sweep of Article 15(3) reinforced byArticle 39 of the Constitution of India, 1950 (in short the'Constitution'). It is meant to achieve a social purpose. Theobject is to prevent vagrancy and destitution. It provides aspeedy remedy for the supply of food, clothing and shelter tothe deserted wife. It gives effect to fundamental rights andnatural duties of a man to maintain his wife, children andparents when they are unable to maintain themselves. Theaforesaid position was highlighted in Savitaben SomabhaiBhatiya v. State of Gujarat and Ors. (2005 (2) Supreme 503).

6. Under the law the burden is placed in the first placeupon the wife to show that the means of her husband aresufficient. In the instant case there is no dispute that theappellant has the requisite means.

7. But there is an inseparable condition which has also tobe satisfied that the wife was unable to maintain herself.These two conditions are in addition to the requirement thatthe husband must have neglected or refused to maintain hiswife. It is has to be established that the wife was unable tomaintain herself. The appellant has placed material to showthat the respondent-wife was earning some income. That isnot sufficient to rule out application of Section 125 Cr.P.C. Ithas to be established that with the amount she earned therespondent-wife was able to maintain herself.

8. In an illustrative case where wife was surviving bybegging, would not amount to her ability to maintain herself.It can also be not said that the wife has been capable ofearning but she was not making an effort to earn. Whether thedeserted wife was unable to maintain herself, has to bedecided on the basis of the material placed on record. Wherethe personal income of the wife is insufficient she can claimmaintenance under Section 125 Cr.P.C. The test is whetherthe wife is in a position to maintain herself in the way she wasused to in the place of her husband. In Bhagwan v. KamlaDevi (AIR 1975 SC 83) it was observed that the wife should bein a position to maintain standard of living which is neitherluxurious nor penurious but what is consistent with status ofa family. The expression "unable to maintain herself" does notmean that the wife must be absolutely destitute before she canapply for maintenance under Section 125 Cr.P.C.

9. In the instant case the trial Court, the Revisional Courtand the High Court have analysed the evidence and held thatthe respondent wife was unable to maintain herself. Theconclusions are essentially factual and they are not perverse.That being so there is no scope for interference in this appealwhich is dismissed.